1    APPLICABLE TERMS 
1.1    These terms set out information about the Supplier and the legal terms and conditions (Terms) on which the Supplier will provide the Services to the Intermediary.
1.2    These Terms will apply to any contract between the Supplier and the Intermediary for the supply of the Services (Contract). The Intermediary should read these Terms together with the Basis of Assessment carefully and make sure that they understand them, before placing an Order.  
1.3    The Intermediary should print a copy of these Terms or save a copy of them for future reference.
1.4    The Supplier may amend these Terms from time to time. Every time the Intermediary wishes to place an Order the Intermediary should check these Terms to ensure they understand the terms which will apply at that time. 

2    DEFINITIONS
2.1    In these Terms:
Acceptance: shall have the meaning given to it in clause 3.3;
Assessor: means an employee or contractor appointed by the Supplier to produce a Report; 
Basis of Assessment: means the instructions and basis of assessment provisions specifying what costs are included or excluded from the Report and the assumptions and basis on which the Report will be prepared (such provisions being linked to the Quotation and also contained in the notes to the Report);
Charges: means the charges payable by the Intermediary to the Supplier for the provision of the Services in accordance with clause 5 and which are specified in the Quotation;
Client: means:
(a)    the owner of the Property or the Properties; or 
(b)    the lawful occupier of the Property or the Properties; or 
(c)    a proposed purchaser of the Property or the Properties or a leasehold interest in the Property or the Properties;
Confidential Information: includes, without limitation, business information and all documents, computer records, specifications, technical descriptions, records, drawings, designs and data relating to a Report and/or the provision of the Services;
Contract: shall have the meaning given to it in clause 1.2;
Report: means the desktop rebuild cost assessment report carried out by the Supplier or on its behalf in respect of a Property pursuant to which the Supplier estimates the rebuilding costs in the event of a total loss of that Property based on the gross external area and typical rates per square metre for the building use and type/quality of construction of that Property (excluding the contents of the Property);
Disclaimer: means the disclaimer attached to a Report by the Supplier; 
Force Majeure Event: shall have the meaning given to it in clause 14.3;
Group Company: means a company which is either a holding company or a subsidiary of a Party, or a subsidiary of that Party's holding company (as those terms are defined in section 1159 of the Companies Act 2006);
Intellectual Property Rights: means copyrights, trademarks, domain names, rights in computer software and databases, know-how and any similar rights whether arising in the United Kingdom or elsewhere in the world;
Insurer: means an insurance company with whom the Intermediary acts as an intermediary between that insurance company and a Client; 
Intermediary: means the Party to whom the Services are supplied, who pays for the Services and who acts as an intermediary between the Insurance Company and a Client;
Materials: means documents, drawings, working papers or similar materials and any data or other information;
Order: means a request from the Intermediary asking the Supplier to provide the Services in relation to one or more Properties in response to a Quotation;
Parties: means the parties to a Contract being, together, the Intermediary and the Supplier and their respective successors in title; and Party means either of them;
Property or Properties: means the commercial property or properties, which must be located in the United Kingdom, Channel Islands or Isle of Man, each the subject of a Report, details of which are set out in the Order;
Services: means the carrying out by the Supplier of a desktop rebuild cost assessment and production of a Report in respect of a Property, as more particularly described in clause 4 of these Terms;
Supplier: means Rebuild Cost Assessment Limited a company incorporated in England and Wales with company number 09746801 (VAT number 232242352) whose registered office is at 43 Richmond Hill, Bournemouth, England, BH2 6LR and whose main trading address and address for correspondence is Floor 1 Mey House, Bridport Road, Poundbury, Dorchester DT1 3QY;
Terms: shall have the meaning given to it in clause 1.1 and such terms will apply to each Contract; and
Quotation: a written quotation provided by the Supplier to the Intermediary for Services.
2.2    The headings in these Terms are for convenience only and shall not affect their interpretation.
2.3    Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

3    REQUEST FOR SERVICES
3.1    If the Intermediary wishes to purchase Services it shall place an Order with the Supplier. The Order constitutes an offer by the Intermediary to purchase Services in accordance with the Quotation and these Terms.
3.2    In submitting an Order the Intermediary confirms and warrants to the Supplier:
3.2.1     that it has read and understood the Basis of Assessment; 
3.2.2     that it has the requisite authority from the Client to provide the Supplier with the current sums insured for the Property or the Properties; and 
3.2.3    that it acknowledges the Services are only available in respect of Properties with a rebuild value of £20,000,000 or less.
3.3    The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order (Acceptance), at which point and on which date the Contract shall come into existence. 
3.4    The Intermediary is responsible for ensuring that the information set out in the Order is complete and accurate. 
3.5    In the event a Request covers more than one Property:
3.5.1    the Services will be carried out in respect of each individual Property; and
3.5.2    Charges will be payable for each individual Report.
3.6    No advice on insurance will be provided by the Supplier and in the event the Supplier receives any questions from the Client, that are not related to the rebuild cost, the Supplier shall direct the Client to the Intermediary.

4    SUPPLY OF SERVICES
4.1    General. The Supplier shall provide the Services to the Intermediary subject to these Terms which shall govern the Contract to the exclusion of any other terms and conditions, express or implied.
4.2    What the Service involves. The Supplier may in its discretion send the Intermediary a questionnaire specific to the type of Property requesting certain information (Questionnaire). Upon receipt of the completed Questionnaire and all documentation requested within the Questionnaire, the Supplier will use that information (together with the Basis of Assessment) to undertake a desktop rebuild cost assessment of the Property. 
4.3    Quality Control Call: Once the Supplier has completed the assessment it will arrange for one of its quality control assessors to telephone the Intermediary to clarify any questions that the assessor may have and/or to check or verify any relevant information. 
4.4    No Questionnaire. In the event the Supplier determines it does not require a Questionnaire from the Intermediary it shall proceed to undertake a desktop rebuild cost assessment of the Property in accordance with the Basis of Assessment and the provisions of clause 4.3 shall apply accordingly. 
4.5    Failure to Provide Information. The Supplier may need certain information from the Intermediary to enable it to supply the Service, for example, particular information relating to the Property which is the subject of the Service including that requested in the Questionnaire. The Supplier will not be responsible for supplying the Service late or not supplying any part of it if this is caused by the Intermediary failing to provide any information needed within a reasonable time of the Supplier requesting it. 
4.6    Accuracy of information provided by Intermediary. The Intermediary will be asked to confirm that all information provided by it to the Supplier is complete and accurate to the best of its knowledge. In providing such information the Intermediary acknowledges that the Supplier will rely on that information in order to provide the Services and the Supplier does not  accept any liability for any deficiency in the Report in the event such information is not complete and accurate. 
4.7    Issue of Report. Upon issue of the Report the Supplier will request that the Intermediary review the  Report and confirm its acceptance of it. Such acceptance will be the Intermediary’s confirmation that the information contained in the Report (as provided by the Intermediary via the Questionnaire (where applicable) and/or through discussion as referred to in clause 4.3) is correct. The Supplier shall be entitled to assume that the Intermediary has accepted the Report if it does not otherwise contact the Supplier within 10 business days of receipt to object to the content.

5    PRICE AND PAYMENT
5.1    The Charges payable for the Services will be as set out in the Quotation. The Charges are exclusive of value added tax. 
5.2    The Charges may change from time to time, but changes will not affect any Order already placed.
5.3    Where the Intermediary has a credit account with the Supplier, the Supplier will invoice the Intermediary on completion of the Services and payment of the Charges specified in an invoice is due seven (7) days from the date of the Supplier’s invoice or as otherwise agreed between the parties in writing.
5.4    Where the Intermediary does not have a credit account with the Supplier, the Intermediary must pay the Charges in full in advance of the Supplier undertaking the desktop rebuild cost assessment. The Supplier will notify the Intermediary on Acceptance of the available methods to make such payment. 

6    DELIVERY
6.1    Delivery of the Report by the Supplier shall be by email or post, in either case to the email address or postal address notified by the Intermediary to the Supplier in the Order.  The Supplier shall not be liable for the loss, misdirection or destruction of the Report after it has been either sent to the email address provided by the Intermediary for that purpose or placed in the Royal Mail posting system to the postal address provided by the Intermediary for that purpose.
6.2    Any dates quoted for delivery of the  Report are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Report that is caused by a Force Majeure Event or the Intermediary's failure to provide the Supplier with adequate information or any other instructions.

7    RISK AND TITLE
7.1    Responsibility for, and ownership of, the Report shall pass to the Intermediary on delivery.  
7.2    The Intellectual Property Rights in the Services and in the Report shall at all times remain with the Supplier.

8    CONFIDENTIALITY
8.1    Neither the  Report, nor any part or extract from it, may be included in any published document, circular or statement or otherwise by the Intermediary without the prior written approval of the Supplier of the form and context in which it may appear.
8.2     Subject to clauses 8.4 and 8.5, each Party shall keep confidential all Confidential Information and not use it except for the purpose of exercising or performing its rights and obligations under the Contract.  Each Party may disclose Confidential Information to a Group Company and to its or their respective employees, officers, professional representatives or advisers, sub-contractors and agents, provided that such persons:
8.2.1    need to know it in connection with the exercise or performance of that Party's rights and obligations under these Terms;
8.2.2    have been informed of the confidential nature of the Confidential Information divulged; and
8.2.3    agree to act in compliance with the confidentiality requirements in these Terms.
8.3    Neither Party will disclose Confidential Information to any third party or use it except as otherwise permitted in these Terms.
8.4    Notwithstanding any other provision of these Terms, it shall not be a breach of these Terms for either Party to disclose any Confidential Information pursuant to a court order or a binding request from a regulatory (or other analogous) authority with jurisdiction or from any other third party with power to require the disclosure of such information, provided that (to the extent it is permitted to do so) the affected Party gives all reasonable notice of such disclosure to the other Party.
8.5    Notwithstanding any other provision of these Terms, the Supplier may use the data gathered in the performance of the Services for its own business purposes but may only disclose such data to third parties in aggregated form and in a manner which does not identify a specific property or person. 
8.6    The Report is produced solely for the purpose of assisting in calculating the correct level of insurance cover for the Property and cannot be used by the Intermediary or the Client, or any other person, for any other purpose (including use in respect of insurance claims and evidencing losses) without the prior written consent of the Supplier.
8.7     Subject to the other Terms, the provisions of this clause 8 shall continue to apply notwithstanding termination of the Contract.

9    DATA PROTECTION
9.1    For the purposes of this clause 9: 
9.1.1    Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
9.1.2    Data Protection Legislation:
(a)    To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data.
(b)    To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier or Intermediary is subject, which relates to the protection of Personal Data. 
9.1.3    Domestic Law: the law of the United Kingdom or a part of the United Kingdom. 
9.1.4    EU GDPR: the General Data Protection Regulation ((EU) 2016/679). 
9.1.5    EU Law: the law of the European Union or any member state of the European Union. 
9.1.6    UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018. 
9.2    Both Parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10.2 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under the Data Protection Legislation. 
9.3    The Parties acknowledge that for the purposes of the Data Protection Legislation, the Intermediary is the Controller and the Supplier is the Processor. Clause 9.7 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of Personal Data and categories of Data Subject.
9.4    Without prejudice to the generality of clause 9.2, the Intermediary will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier and/or lawful collection of the Personal Data by the Supplier on behalf of the Insurer for the duration and purposes of these Terms. 
9.5    Without prejudice to the generality of clause 9.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under these Terms:
9.5.1    process that Personal Data only on the documented written instructions of the Intermediary unless the Supplier is required by Domestic Law or EU Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law or EU Law as the basis for processing Personal Data, the Supplier shall promptly notify the Intermediary of this before performing the processing required by the Domestic Law or EU Law unless the Domestic Law or EU Law prohibits the Supplier from so notifying the Intermediary;
9.5.2    ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Intermediary, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
9.5.3    ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
9.5.4    not transfer any Personal Data outside of the UK or EEA unless the prior written consent of the Intermediary has been obtained and the following conditions are fulfilled:
(a)    the Intermediary or the Supplier has provided appropriate safeguards in relation to the transfer;
(b)    the data subject has enforceable rights and effective legal remedies;
(c)    the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(d)    the Supplier complies with reasonable instructions notified to it in advance by the Insurer with respect to the processing of the Personal Data;
9.5.5    assist the Intermediary, at the Intermediary’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
9.5.6    notify the Intermediary without undue delay on becoming aware of a Personal Data Breach;
9.5.7    at the written direction of the Intermediary, delete or return Personal Data and copies thereof to the Intermediary on termination of these Terms unless required by Domestic Law or EU Law to store the Personal Data; and
9.5.8    maintain complete and accurate records and information to demonstrate its compliance with this clause 9.5.
9.6    The Intermediary consents to the Supplier appointing third-party processors of Personal Data under these Terms. The Supplier confirms that it has entered or (as the case may be) will enter with any third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 10 and in either case which the Supplier confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Intermediary and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 9. 
9.7    For the purposes of clause 9 the Data Subject is the Client. The Supplier will process the name, address, email address and telephone number of the Client for the purposes of providing the Services. The processing will cease on completion of the Services.

10    WARRANTIES AND LIABILITY
10.1    The Supplier warrants to the Intermediary that the Services will be provided using reasonable care and skill but shall be subject to the provisos in clause 10.3. All other conditions, warranties and other terms which might have effect between the Parties or be implied or incorporated into these Terms, whether by statute, common law or otherwise, are hereby excluded.
10.2    The Supplier shall have no liability to the Intermediary for any liability, demand, loss, damage, costs, expenses or other claims for compensation arising as a result of:
10.2.1    any Materials supplied by the Intermediary; 
10.2.2    any instructions supplied by the Intermediary which are incomplete, incorrect, inaccurate, illegible, in the wrong form or late; or 
10.2.3    any other fault of the Intermediary or any person acting on its behalf.
10.3    Each  Report is supplied subject to the following provisos:
10.3.1    the Supplier gathers information for the Report from a number of publicly and non-publicly available sources and uses such information in order to produce the Report. Whilst the Supplier endeavours to ensure such information is as accurate as possible it does not guarantee the accuracy of information supplied by a third party;
10.3.2    the Intermediary acknowledges that it is ordering a Report for which information is gathered online and that the Services do not include a physical survey or inspection of the Property and that neither the Supplier nor its employees, agents or sub-contractors will visit the Property for the purposes of carrying out the Services; 
10.3.3    the Supplier will rely on and use information provided by the Intermediary including any response to the Questionnaire (where requested) and verbal information from the quality control telephone call, in order to produce the Report which the Intermediary confirms is complete and accurate;
10.3.4    the Report has been prepared in accordance with and subject to the Basis of Assessment; and 
10.3.5    the Intermediary acknowledges that a physical site survey or inspection of the Property is likely to produce more accurate results than the results the Services are able to produce.
10.4    The Intermediary hereby undertakes to indemnify and hold harmless the Supplier against any liability, damages, cost, expense, demand or loss which it (or any Group Company or an Assessor) may suffer together with all interest, penalties and reasonable costs and expenses which it or they may incur arising out of or in connection with any breach of these Terms or any use of a Report or reliance thereon by someone other than the Intermediary, the Insurer or the Client.
10.5    Nothing in these Terms shall limit either Party's liability in respect of any claims:
10.5.1    for death or personal injury caused by the negligence of that Party and/or the employees, agents and/or sub-contractors of such Party;
10.5.2    resulting from any fraud including fraudulent misrepresentation made by such Party; and
10.5.3    for which liability may not otherwise lawfully be limited or excluded.
10.6    Subject to clause 10.5, in no event shall the Supplier be liable to the Intermediary, the Insurer or the Client under contract, tort (including but not limited to negligence), breach of statutory duty or otherwise for any indirect or consequential damages including loss of profits, business interruption, loss of sales, loss of turnover and loss of opportunity even if the loss was reasonably foreseeable or either Party has been advised of the possibility of such damages.
10.7     Subject to clauses 10.5 and 10.6, the aggregate liability of the Supplier hereunder (howsoever caused) (including but not limited to any liability for the acts and omissions of the Supplier's employees, consultants, agents or sub-contractors) in respect of any breach of its obligations to the Intermediary, the Insurer and the Client (whether implied or express) arising under or in connection with the Contract whether in contract, tort (including but not limited to negligence), breach of statutory duty, restitution or otherwise will be limited to one million pounds (£1,000,000).
10.8     The Supplier’s Group Companies and the Assessors shall be entitled to enforce the provisions of this clause 10 as if they were a Party to the Contract. 
10.9    This clause 10 shall survive termination of the Contract. 

11    TERMINATION
11.1    The Supplier may at any time immediately terminate the Contract in relation to one or more Properties if for any reason it is not able to fulfil the Services in relation to those Properties. This may occur for example because the Supplier considers, acting reasonably, that one or more Properties are not suitable for a desktop rebuild cost assessment.
11.2    In the event that the Supplier terminates the Contract in relation to one or more Properties in accordance with clause 11.1, a representative of the Supplier will contact the Intermediary to confirm this.  The Contract shall remain in full force and effect in respect of those Properties which the Supplier is able to fulfil the Services.

12    THIRD PARTIES
12.1    In carrying out its obligations hereunder the Parties acknowledge that the Supplier is acting only for the Intermediary and the following shall apply:
12.1.1    the Supplier shall not be required to take instructions in relation to a Report or the Services from anyone other than the Intermediary; and
12.1.2    each Report is produced exclusively for the Intermediary, the Insurer and the Client only and the Supplier shall not be liable to any third party (whether in contract, tort (including but not limited to negligence), breach of statutory duty, restitution or otherwise and howsoever arising) in respect of any inaccuracy, error, omission, unfitness for purpose, defect or inadequacy of any kind whatsoever in the Report. 
12.2    Each Report shall contain a Disclaimer and the Intermediary undertakes and agrees that it shall not remove or vary, or permit the removal or variation of, the Disclaimer without the Supplier's prior written consent. 
12.3    If at any time the Intermediary discloses or provides a copy of any Report or part thereof to any third party whomsoever:
12.3.1     the Intermediary shall not alter or vary the content of such Report or the Disclaimer; 
12.3.2    the Intermediary shall take all reasonable steps to ensure that no third party shall remove the Disclaimer from any Report; and
12.3.3    the Intermediary shall, save where the third party is the Insurer or the Client, prior to or at the time of such disclosure notify the relevant third party in writing that the third party is not entitled to rely on the Report.
12.4    Save as otherwise provided in the Terms, the Parties intend that no term of a Contract may be enforced by a third party pursuant to the Contracts (Rights of Third Parties) Act 1999.

13    GENERAL
13.1    These Terms, and the documents referred to in them, constitute the entire agreement between the Parties, supersede any previous agreement or understanding and may not be varied except in writing between the Parties.  All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
13.2    Any notice required or permitted to be given by either Party to the other in accordance with these Terms shall be in writing addressed to the other Party at its registered office or principal place of business or at such other address as may at the relevant time have been notified pursuant to this provision to the Party giving the notice and shall be delivered by hand or sent by special delivery post.
13.3    Neither Party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a Party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, pandemics, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors. 
13.4    No failure or delay by either Party in exercising any of its rights under these Terms shall be deemed to be a waiver of that right and no waiver by either Party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.5    If any part of the Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of any other Terms shall not be affected.
13.6    Nothing in these Terms is intended to or shall operate to create a partnership or joint venture of any kind between the Parties.
13.7    The Contract is personal to the Parties and may not be transferred or assigned in whole or in part save that the Supplier may assign to any third party provided that such assignee shall be bound by the Terms hereof as if it were a Party.
13.8    The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by the law of England and Wales and the Parties agree to submit to the exclusive jurisdiction of the English courts. 
 
Disclaimer

IMPORTANT NOTICE

This report (Report) has been prepared by Rebuild Cost Assessment Limited (company number 09746801) (RCA) for the provision of a rebuild cost assessment of the building the subject matter of the Report (Property) solely for the purpose of calculating the correct level of insurance cover for the Property prior to the occurrence of any loss or damage to the Property (Purpose). The Report has been prepared for the benefit of:

(a)    The Intermediary (being the entity that has commissioned this Report);
(b)    The Client (being the owner or occupier or proposed purchaser of the building to which this Report relates); and 
(c)    The Insurer (being an insurance company with whom the Intermediary acts as an intermediary between that insurance company and the Client); 

together (the Authorised Recipients). 

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The Authorised Recipients and anyone else receiving this Report must treat it as confidential.

This Report may not be copied or disclosed to any person in whole or in part or used for any purpose other than the Purpose. No one other than the Authorised Recipients may rely on this Report. 

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This Report has been prepared in part based on written and verbal information provided by the Intermediary. RCA gives no warranty express or implied as to the accuracy of such information and RCA shall have no liability for any inaccuracy, error, omission, unfitness for purpose, defect or inadequacy of any kind whatsoever in the report which is due to any such information being incomplete or inaccurate in any way.

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Save for the warranty that the Report has been prepared using reasonable skill and care, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.  Without prejudice to the foregoing, the maximum aggregate liability of RCA and its employees, officers, agents and sub-contractors for any liability and losses of whatever kind and howsoever arising (including negligence), as a result of access to, use of, or reliance upon, any information contained in this Report is limited to £2,000,000 (two million pounds). Neither RCA nor its employees, officers, agents or sub-contractors shall be liable to any person for indirect, consequential or special losses. In no circumstances shall RCA or its employees, officers, agents or sub-contractors be liable to (a) any person other than the Authorised Recipients or (b) where the Report has not been used for the Purpose.

Nothing in this disclaimer shall limit or exclude the liability of RCA to the extent that such liability cannot be lawfully limited or excluded.